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AG Bobek on the scope of application of Brussels I (insolvency context)

AG Bobek delivered on 18 October 2018 his opinion in case C‑535/17 (NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and PI v BNP Paribas Fortis NV), which is about Brussels I and the Insolvency Regulation.

Context:

“1. PI was a bailiff in the Netherlands. He held a current account with BNP Paribas Fortis NV (‘Fortis’) in Belgium. PI used the account for professional purposes relating to his bailiff practice. In 2006, PI set up a company through which to carry out the activities of the bailiff practice. He was the sole shareholder and director of that company. Another account, a trust account, was held in the company’s name with Rabobank in the Netherlands.

2. In September 2008, PI transferred EUR 550 000 from the trust account with Rabobank in the Netherlands to the current account with Fortis in Belgium. A few days later, he withdrew that amount in cash from the current account with Fortis.

3. Both PI and the company were declared bankrupt. The liquidator dealing with these bankruptcy procedures, which were opened in the Netherlands, now seeks the recovery of EUR 550 000 from Fortis in the interest of the general body of creditors of PI and the company. This type of claim is known in Netherlands law as a ‘Peeters-Gatzen action’. It was first allowed in 1983 by a decision of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the referring court in the present case.

4. For the purposes of deciding on the issue of international jurisdiction, the referring court asks this Court whether a claim such as the Peeters-Gatzen action falls within the scope of application of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (2) (‘the Insolvency Regulation’) or of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (3) (‘the Brussels I Regulation’)”.

Opinion: “A claim for damages stemming from the ordinary rules of civil law […] brought against a third party by a liquidator pursuant to the obligation, imposed on him by the national law on insolvency, to administer and liquidate the bankrupt estate on behalf of the general body of creditors, which is brought on the grounds that that third party behaved wrongfully towards the creditors, and the proceeds of which are added to the estate, falls ratione materiae within the scope of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”.